Alimony - At the Court’s Discretion

Despite the alimony jokes ("She got the mine, I got the shaft"), spousal maintenance no longer assures the divorced woman the lifetime financial floor it did when courts considered marital misconduct in dividing the marital estate and awarding alimony. When alimony is awarded, courts increasingly award spousal maintenance on the assumption that it is rehabilitative, that is, with an eye to easing the wife back into the work force.

In deciding alimony, judges exercise tremendous latitude. Depending upon the jurisdiction, the amount and duration depend upon the length of the marriage, the standard of living, the contributions of both parties (both economic and noneconomic), the age of the parties, their incomes, the financial prospects for each spouse, health issues, and only in some instances what is called "conduct during the marriage."

At one time, courts awarded alimony on the theory that the injured spouse (usually the wife) should be able to maintain the standard of living to which she was accustomed - an unreasonably high standard because even many intact couples have trouble holding position on two incomes.

In general, courts seldom award permanent alimony to a spouse leaving a short-term marriage on the theory that a younger woman is better positioned to re-enter the work force and make a fresh start on her own.

Despite advances in the workplace, many women defer to their husbands about money management, including the management of her property and her money. Very often, because the husband manages the couple’s assets, he is in a better position to manipulate the money to his advantage when the marriage goes south. Even educated women will sign something because their husbands tell them to do it. And finally, during the happy times of a marriage, neither the husband nor the wife thinks much about property because what they have is "ours." One English mother of three discovered that the fifty-fifty split her husband assured her did not turn out that way at all. "I got a huge shock when I realized he had hired a crack legal team who managed to hide a large proportion of his assets and write off most of his income. I didn’t stand a chance...I find it almost unbearable that I have to scrimp and save to bring up the kids, while his lifestyle is noticeably more comfortable and extravagant than when we were together."

Very often, the division of the marital estate becomes clouded by questions of what is known as the "commingling of assets," that is, the mixing of separate property (what belongs to one spouse exclusively, such as gifts and inheritances in most jurisdictions) with marital property (such as the home, which couples own as tenants by the entirety).

Very often, both men and women become their own worst enemies in a divorce because of the pain and suffering of ending a marriage. For women this can be particularly difficult. A woman who finds herself in an unsought divorce (dumped for a younger woman) may lash out at her husband in an understandable anger, but she must consider her long-time life needs. For example, in many cases, charging adultery, even when it is true and provable, surrenders no gain to the wife and may make a satisfactory divorce strategy more difficult.

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